United States v. Cisneros-Resendiz
2011 U.S. App. LEXIS 18468
9th Cir.2011Background
- Cisneros challenges his §1326 illegal reentry conviction based on an allegedly invalid removal order from February 27, 2006.
- Removal proceedings occurred after Cisneros falsely claimed U.S. citizenship at San Ysidro; he was removed to Mexico the same day.
- Cisneros had subsequent unlawful reentries and state/federal convictions; these events are alleged to show the removal order's invalidity and prejudice.
- Cisneros was indicted in 2010 for illegal reentry, relying on the 2006 removal order; he moved to dismiss the indictment as to the removal order's validity.
- The district court denied dismissal; Cisneros pleaded guilty, preserving his right to appeal the denial.
- The Ninth Circuit analyzes the collateral attack under 8 U.S.C. §1326(d) and the framework for withdrawing an application for admission under Gutierrez and §1240.1(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the removal order was invalid due to due process failure | Cisneros argues IJ failed to inform about withdrawal relief prejudicing him. | Government contends no due process violation or insufficient prejudice shown. | Assumed due process violation; prejudice not shown under §1326(d). |
| Whether Cisneros demonstrated prejudice under §1326(d) to invalidate the removal order | Cisneros would plausibly have been allowed to withdraw if relief granted. | IJ would not have granted withdrawal given direct inadmissibility factors. | Not plausible IJ would grant withdrawal; no prejudice. |
| What framework governs withdrawing an application for admission and its relation to inadmissibility factors | Cisneros argues factors like youth and family ties relate to admissibility and could support withdrawal. | Only factors directly relating to inadmissibility count; equities like age/family ties do not. | Only factors directly relating to inadmissibility are relevant; Cisneros's factors do not establish 'interest of justice'. |
Key Cases Cited
- United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (prejudice requires likelihood of relief; first-impression issue noted)
- United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir. 2011) (Barajas-Alvarado on relief factors for withdrawal under §1240.1(d))
- United States v. Corrales-Beltran, 192 F.3d 1311 (9th Cir. 1999) (defined 'unique circumstances' and applicability to withdrawal)
- United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (en banc; duty to inform about eligibility for relief; collateral attack context)
- United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir. 1998) (precedes formation of prejudice standard for §1326(d))
- United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (de novo review of §1326 claims; framework applied)